Madan Lal Anil Kumar, Meerut V. ITO, Meerut

ITA 289/DEL/2014

• Counselvise Citation: 28920114 RSA 2014
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 22-09-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 15-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIT LAL
• Assessee Lawyers: VINOD GOEL
• Keywords: Gift; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC - I NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO. - 289 /DEL/201 4 (ASSESSMENT YEAR - 200 1 - 02 ) MADAN LAL ANIL KUMAR, 104, STREET NO.2, THAPAR NAGAR, MEERUT PAN - AACHM9381E (APPELLANT ) VS ITO, WARD - 1(4), MEERUT (RESPONDENT ) APPELLANT BY SH. VINOD GOEL, ADV RESPONDENT BY SH.AMRIT LAL, SR. DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 23 . 1 0.201 3 OF CIT(A), MEERUT PERTAINING TO 200 1 - 0 2 ASSESSMENT YEAR ON THE GROUND THAT DIRECTIONS GIVEN BY THE ITAT IN THE REMAND HAVE NOT BEEN FULLY COMPLIED WITH. LD. AR, MR. VINOD GOEL REFERRING TO THE GROUNDS RAISED SUBMITTED THAT THE ISSUE HAD BEEN REMANDED TO THE AO TO LOOK INTO THE ISSUE OF GIFT OF RS.5 LACS DE NOVO . DESPITE THIS FACT AGAIN AN ADDITION HAS BEEN MADE. THE LD. SR.DR PLACED RELIANCE UPON THE ORDERS OF THE AUTHORITIES BELOW. 2. HAVING HEARD THE SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS SEEN FROM THE ASSESSMENT ORDER ITSELF THAT THE CO - ORDI NATE BENCH VIDE ITS ORDER DATED 2222/DEL/2006 DATED 13.08.2008 SET ASIDE THE ISSUE OF THE ALLEGED GIFT OF RS.5 LACS STATED TO HAVE BEEN RECEIVED BY THE ASSESSEE FROM HUF FROM SH. SANJAY MOHAN AGARWAL ON 31.03.2000 VIDE DRAFT NO.969095 DATED 31.03.2000 ISSU ED BY VIJAYA BANK, NEW DELHI. THE SPECIFIC DIRECTION IN THE REMAND IS REPRODUCED FROM THE ASSESSMENT ORDER HEREUNDER: - 'SINCE THE ASSESSEE HAS FILED THE ADDITIONAL GROUND STATING THAT THE SAID IMPUGNED GIFT IS NOT RELATED TO THE ASSESSMENT YEAR UNDER CONSIDERATION AND THIS GROUND WAS NOT DEALT WITH BY THE LOWER AUTHORITIES, IN THE INTEREST OF JUSTICES, THIS ISSUE IS TO BE DATE OF HEARING 22.09 .2015 DATE OF PRONOUNCEMENT 16 .11 .2015 I.T.A .NO. - 289/ DEL/201 4 PAGE 2 OF 3 LOOKED INTO BY THE ASSESSING OFFICER AND IT IS INAPPROPRIATE TO BE DECIDE THE ISSUE ON MERITS BY US. HENCE, WE SET ASIDE THIS ISSUE TO THE FILE OF THE AO FOR DECIDING THE SAME AFRESH AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. TH E APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES'. 3. IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, THE LD. COMMISSIONER CAME TO THE FOLLOWING FINDING: - 3.3. THE FACTS OF THE CASE HAVE BEEN CONSIDERED. IT IS NOTED THAT THE ITAT HAS SET ASID E THE CASE WITH REFERENCE ONLY TO THE ADDITIONAL GROUND AND THE ASSESSMENT ORDER AS ALSO THE APPEAL REQUIRED TO BE RESTRICTED TO SUCH ADDITIONAL GROUND. NO INDEPENDENTLY VERIFIABLE EVIDENCE HAS BEEN BROUGHT ON RECORD TO ESTABLISH THAT DEMAND DRAFT HAD BEEN RECEIVED BY THE ASSESSEE ON 31.03.2000.LN VIEW OF THE FACT THAT THE PURPORTED GIFT WAS HELD TO BE NOT GENUINE IN THE ORIGINAL ASSESSMENT AND APPEAL PROCEEDINGS, THE CREDIBILITY OF ANY STATEMENT MADE BY THE SO CALLED DONOR IS SERIOUSLY ERODED. THE GIFT DEE D AND THE AFFIDAVIT OF THE DONOR THEREFORE CANNOT BE A CREDIBLE EVIDENCE IN SUPPORT OF THE CONTENTION THAT THE AMOUNT HAD BEEN RECEIVED ON 31.03.2000. IN VIEW OF THE ABOVE, THE DATE OF THE CREDIT OF THAT AMOUNT TO THE BANK ACCOUNT OF THE ASSESSEE HAS NECES SARILY TO BE TREATED AS THE DATE OF RECEIPT OF AMOUNT. THEREFORE, THE ASSESSMENT HAD CORRECTLY BEEN MADE IN THE YEAR UNDER CONSIDERATION. THE OTHER ISSUES RELATING THIS CASE HAVE ALREADY BEEN DECIDED BY THE THEN CIT(A), MEERUT IN THE ORDER DATED 21.03.2006 AND CANNOT BE RECONSIDERED/REVIEWED IN THE PRESENT APPEAL UNLESS THERE IS A SPECIFIC DIRECTION TO THIS EFFECT BY THE ITAT. 4. THE LD.AR IN THE COURSE OF HIS ARGUMENTS INVITING ATTENTION TO THE PAPER BO O K PAGE 3 & 4 WHICH CONTAINS THE COPY O F THE GIFT DEED AND THE AFFIDAVIT IN SUPPORT THEREOF SH. SANJAY M OHAN AGARWAL SUBMITTED THAT SH. SH. SANJAY MOHAN AGARWAL, RESIDENT OF DELHI TRAVELLED TO MEERUT TO GIVE THE GIFT TO THE ASSESSEE AND THE SAID GIFT DEED IS WITNESSED BY SH. S . TYAGI, A RESI DENT OF MEERUT. IN THESE CIRCUMSTANCES, AN OPPORTUNITY TO PRO VE THAT THE GIFT DEED WAS HANDED OVER ON THE DATE TO THE ASSESSEE WAS REQUESTED. IT WAS HIS SUBMISSION THAT UNFORTUNATE LY THE PHOTOCOPY OF THE AFFIDAVIT OF THE DONOR DOES NOT THRO W LIGHT ON THI S ASPECT AND SINCE THE DONOR EXPIRED IT WOULD NOT BE POSSIBLE TO CLARIFY THE ISSUE FROM THAT SOURCE BUT REGARDLESS OF THAT THE AFFIDAVIT OF THE WITNESS ETC. CAN BE FILED AND IN THE INTERESTS OF SUBSTANTIAL JUSTICE WHERE THE GENUINENESS OF THE GIFT HAS NOT BEEN DOUBTED AS THE AO HAS ONLY QUESTIONED THE YEAR IN WHICH IT CAN BE CONSIDERED I N THIS BACKGROUND THE CLAIM OF THE ASSESSEE THAT THE AMOUNT HAVE NOT BEEN GIFTED AND ACCEPTED ON THE SPECIFIC DATE EVIDENCED BY MEMORANDUM OF GIFT WHEREIN T HE ONLY ISSUE WHI CH AS PER THE AFORESAID FINDING OF THE CIT(A) WHICH REMAINED TO BE I.T.A .NO. - 289/ DEL/201 4 PAGE 3 OF 3 ESTABLISHED WAS WHETHER THE DONOR TRAVELLED TO MERRUT OR THE DONE E TRAVELLED TO DELHI AND IN THE FACTS OF THE PRESENT CASE IT WAS CLAIMED THAT IT IS THE DONOR WHO TRAVELLED TO MEERUT. IN T HESE CIRCUMSTANCES, A REQUEST WAS MADE THAT THE ISSUE MAY BE REMANDED TO THE AO. THE SAID REQUEST WAS NOT SERIOUSLY OPPOSED BY THE LD. SR. DR WHO STATED THAT THE ASSESSEE SHOULD HAVE BEEN READY WITH THE RELEVANT EVIDENCE TO ESTABLISH THIS FACT. MR. GO E L , ADV. STATED THAT OPPORTUNITY WAS NOT PROVIDED AS THE ASSESSEE WAS COMPLACENT THAT IN THE FAC E OF THE GIFT DEED AND THE AFFIDAVIT THE CLAIM OF THE ASSESSEE WAS ALLOWABLE. 5. ACCORDINGLY IN THE LIGHT OF THE ABOVE QUOTED POSITION OF THE PARTIES , I AM OF TH E VIEW THAT IN THE INTERESTS OF SUBSTANTIAL JUSTICE, THE ASSESSEE MAY BE PROVIDED WITH AN OPPORTUNITY TO ESTABLISH ITS CLAIM. THUS, THE AO IS DIRECTED TO ACCEPT AND EXAMINE THE VERACITY OF THE EVIDENCE WHICH ASSESSEE MAY SEEK TO PLACE ON RECORD IN SUPPORT OF IT AND THEREAFTER PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AND IN THE LIMITED CONTEXT WHERE THE LD. COMMISSIONER HAS MERELY QUESTIONED THE EXISTENCE OF INDEPENDENTLY V E R I F I A B L E EVIDENCE TO ESTABLISH THAT DEMAND DRAFT WAS RECEIVED BY THE ASSESSEE ON 3 1.03.2000. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE SAID ORDER WAS PRONOUNCED ON THE DATE OF HEARING ITSELF IN THE OPEN COURT. 6 . IN THE RESULT, THE APPE AL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 1 6 T H OF NOVEMBER, 2015. S D / - (DIVA SINGH) JUDICIAL MEMBER DATED: 1 6 /11 /2015 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI